and the party may declare in the same manner as before the statute."53

§ 7455. Forms of Action-"Trespass" and "Case."-In many of the States, forms of action as they existed at common law have been abolished. In others, however, they are retained. Where the latter is the case, it is a material question whether the action for certain injuries should be brought in the form of trespass or case. The doctrine on this subject is well stated in an early Alabama case, as follows: "Whenever the injury is direct and immediate, whether it proceed from design or negligence, trespass will lie. But where the injury is merely consequential, the remedy must be by action on the case. For the act of a servant, or one in the employment of another, although the servant may be liable in trespass, the master is not liable in that form of action unless present, directing, advising, or encouraging the act; but if he is present when the act which produces the injury is done by the servant, and directs, advises, or encourages it, he makes it his own, and as a principal trespasser is liable to the party aggrieved in an action of trespass, either jointly with his servant or separately against himself; and the injury being the result of negligence or want of care does not exempt him from liability in this form of action." In this case the injury complained of was a gunshot wound. The evidence showed that the defendant was master and owner of the steamboat "Elizabeth," and was present and ordered a person in his employment to fire the gun which wounded the plaintiff. The action was in form of trespass vi et armis, and a finding in favor of the plaintiff was sustained. In a New York decision, case was held to be the proper form of action for an injury caused by carelessly driving a horse and gig against the plaintiff in the street. This case seems hardly to bear out the distinction above expressed by the Alabama court. However, after setting out that distinction, the court continues as follows: "Another principle is also recognized: that if the injury is attributable to negligence, though it were immediate, the party injured has his election either to treat the negligence of the defendant as the cause of action, and declare in case, or to consider the act itself as the injury, and to declare in trespass, as in Blin v. Campbell.55 There this court

Kent v. Lincoln, 32 Vt. 595. See also, Matthie v. Barton, 40 Vt. 286.

Illinois &c. R. Co. v. Downey, 18 Ill. 259; St. Louis &c. R. Co. v. Dalby, Rhodes V. Roberts, 1 Stew. 19 Ill. 353; Philadelphia &c. R. Co. (Ala.) 146, per White, J. See also, v. Wilt, 4 Whart. (Pa.) 143. Selma &c. R. Co. v. Webb, 49 Ala. 240; Gates v. Miles, 3 Conn. 64; Illinois &c. R. Co. v. Reedy, 17 Ill. 580;

55 14 Johns. (N. Y.) 432. But see Taylor v. Rainbow, 2 Hen. & M. 423. See also, Dalton v. Favour, 3 N. H.

held case the proper action for carelessly firing a pistol and wounding plaintiff's leg. And had trespass been brought in that case, the court say they would also have considered it appropriate. In some cases either action may be maintained, as where there is both an immediate and also a consequential injury." But this doctrine of the right of election of remiedies is distinctly denied by the Connecticut court in an early case,57 where it was held that an action for a collision at sea, resulting from the defendant's negligence and mismanagement, must be brought in the form of trespass, and not otherwise.58 In Kentucky, though forms of action have been abolished, the distinction between case and trespass has, in effect, been preserved. A petition asking for redress of a "forcible injury should state such facts as would be equivalent to an action of trespass at common law. If the trespass be waived, and the petition go for negligence or want of skill, it should state facts which are equivalent to an action in case according to common-law principles." An infant bailee is liable for positive tortious acts, willfully committed, whereby the thing bailed is injured. But for a mere breach of contract,—as, a failure to drive a horse skillfully, the infant cannot be made liable by changing the form of action to tort. An action on the case will lie against him if he willfully injures or destroys the thing bailed; but in such case the character of the act should be stated in the declaration, that it may be seen to be such a tort as amounts to a disaffirmance of the contract. Where it is sought to recover damages of a municipal or other corporation for a breach of duty imposed by law, it follows from the principles above stated that the proper form of action is case. In the nature of things, a corporation can act only mediately through its servants. And yet it has been held that an action of trespass for assault and battery will lie against a railroad company whose servants wrongfully use violence in putting a passenger off the train for refusing to pay his fare.62 But a discussion of this question is apart from the present purpose. Under the practice in

60

465; Brennan v. Carpenter, 1 R. I. 474; Claflin v. Wilcox, 18 Vt. 605; Howard v. Tyler, 46 Vt. 683; Leame v. Bray, 3 East 593; Scott v. Shepherd, 2 W. Bl. 892; s. c. 1 Smith's Ld. Cas. 210, where the subject is thoroughly discussed.

56 McAllister v. Hammond, 6 Cow. (N. Y.) 345.

67 Gates v. Miles, 3 Conn. 71. See also, Lotan v. Cross, 2 Camp. 464; Scott v. Bay, 3 Md. 431; Jordan v. Wyatt, 4 Gratt. (Va.) 151.

5 Day v. Edwards, 5 Term 648.

See also, Waldron v. Hopper, 1 N. H. 339; Leame v. Bray, 3 East 593. But see Spencer v. Campbell, 9 Watts & S. (Pa.) 32.

50 Kountz v. Brown, 16 B. Mon. (Ky.) 584, per Crenshaw, J.

60 Eaton v. Hill, 50 N. H. 235. 61 Clayburgh v. Chicago, 25 Ill. 535; Illinois &c. R. Co. v. Reedy, 17 Ill. 580; Illinois &c. R. Co. v. Downey, 18 Ill. 259.

62 St. Louis &c. R. Co. v. Dalby, 19 III. 353.

Georgia, an action against a common carrier for negligence in the performance of his duty as a carrier under a contract to carry, is an action upon the case, ex delicto, and may be joined in a count in trover or trespass vi et armis; but if the action be for negligence alone under the contract to carry, or if the counts in the trover or trespass vi et armis, be abandoned, the plaintiff cannot repudiate the contract under which the carrier received the goods, and recover for an unlawful taking. An allegation in an action of trespass on the case for death from negligent acts that the defendants "promised and undertook" to perform certain acts, for the safety of the deceased, is mere surplusage, as such an action does not lie for a breach of contract, although the fact that the wrong done, or the duty neglected, constitutes a breach of contract it is no obstacle to the action." 64

§ 7456. Forms of Action-Whether Ex Contractu or Ex Delicto.Though the various codes have abolished the forms of action existing under the common law, they have, for obvious reasons, left. undisturbed the distinction between actions on contract and actions sounding in tort. The determination of the question whether the one or the other of these forms of action has been adopted very often presents a question of much difficulty of construction. The question is determined by the character of the allegations of the complaint setting out the cause of action. The distinction is of special importance where the statute of limitations fixes a different period for the bringing of actions dependent on their form and the time for bringing the action under one form has passed.65 It is a rule of general acceptance that where the duty which a master owes to his servant is imposed by law by reason of their relation as well as by the contract of the servant, the servant may on the breach of such duty treat the wrong suffered as a tort and bring the action ex delicto.66 In an action against a common carrier the plaintiff may at the trial elect to treat the action either as upon contract or in tort where the declaration is susceptible of either construction and has not been demurred to.67 A complaint sounding in tort against a railroad company for failure to stop its train at a station at which it was advertised to stop, need not allege the price paid for a ticket by the plaintiff or special damages sustained

"Southern Ex, Co. v. Palmer, 48 Ga. 85.

Kinnare v. Chicago, 70 Ill. App. 106; s. c. aff'd, 171 Ill. 332; 3 Chic. L. J. Wkly. 128; 49 N. E. Rep. 536.

"St. Louis &c. Co. v. Sweet, 63 Ark. 563; s. c. 40 S. W. Rep. 463. "Kansas City &c. R. Co. v. Becker,

67 Ark. 1; s. c. 53 S. W. Rep. 406; 46 L. R. A. 814.

67 Central R. Co. v. Pickett, 87 Ga. 734; s. c. 13 S. E. Rep. 750. See also, Seals v. Augusta Southern R. Co., 102 Ga. 817; s. c. 29 S. E. Rep. 116; 10 Am. & Eng. R. Cas. (N. S.)

386.

by him, although such allegations would be proper in an action ex contractu for the same act.68 In the following cases involving the carrier relation the complaints were held to state an action in tort and not for a mere breach of contract:-Where the complaint alleged. a contract of carriage of a passenger upon a sleeping car, and an implication that defendant would awaken the plaintiff before reaching a transfer station in time to enable her to dress herself, and by its rules. and common usage it was its duty so to awaken her, and that its servants agreed to do so, but that upon reaching such station the porter drew the curtains apart, informed her that she must leave the train at. once, refused to hold the train to enable her to dress, and hustled and hurried her to another car so that she fell against its framework and was bruised and injured, and her person was exposed to men occupying the other car, and she was exposed to a hard rain, in consequence of which she suffered a miscarriage; where the complaint alleged that defendant was engaged in shipping cattle, and kept pens for receiving cattle for shipment over its road, and, with its knowledge, consent, and direction, plaintiff, with due care, caused to be placed in the yards certain cattle to be shipped over defendant's road, but it had so negligently constructed its pens that they were insufficient, and the cattle escaped, without plaintiff's fault.70 If, however, the plaintiff states the custom and also relies on an undertaking, general or special, then the cause of action, in reality, is founded on contract, and is to be treated as such, and it cannot be united with a claim to recover damages for a mere tort.71

§ 7457. Proximate Cause.-The complaint in an action for personal injuries must affirmatively show that the negligence of defendant was the proximate cause of the injury.72 And where it appears

6 Purcell v. Richmond &c. R. Co., 108 N. C. 421; s. c. 12 S. E. Rep. 956.

60 McKeon v. Chicago &c. R. Co., 94 Wis. 477; s. c. 35 L. R. A. 252; 2 Chic. L. J. Wkly. 175; 69 N. W. Rep. 175.

70 Missouri &c. R. Co. v. Byrne, 3 Ind. Ter. 740; s. c. 49 S. W. Rep. 41.

71 Colwell v. New York &c. R. Co., 9 How. Pr. (N. Y.) 311.

72 Baltimore &c. R. Co. v. Young, 146 Ind. 374; s. c. 45 N. E. Rep. 479; 6 Am. & Eng. R. Cas. (N. S.) 349; Baltimore &c. R. Co. v. Connoyer, 149 Ind. 524; s. c. 48 N. E. Rep. 352; 49 N. E. Rep. 452; 9 Am. & Eng. R. Cas. (N. S.) 348; Chicago &c. R. Co. v. Thomas, 147 Ind. 35; s. c. 46 N. E. Rep. 73; 9 Am. & Eng. R. Cas. (N.

S.) 181; Cleveland &c. R. Co. v. Stewart, 24 Ind. App. 374; s. c. 56 N. E. Rep. 917; Lake Erie &c. R. Co. v. Mikesell, 23 Ind. App. 395; s. c. 55 N. E. Rep. 488; Louisville &c. R. Co. v. Thompson, 107 Ind. 442; s. c. 5 West. Rep. 833; Pennsylvania Co. v. Marion, 104 Ind. 236; Pittsburg &c. R. Co. v. Conn, 104 Ind. 64; s. c. 3 N. E. Rep. 636; Dugan v. St. Paul &c. Co., 40 Minn. 544; s. c. 42 N. W. Rep. 538; Minnuci v. Philadelphia &c. R. Co., 68 N. J. L. 432; s. c. 53 Atl. Rep. 229; Brinckkord v. Western Union Tel. Co., 58 Hun (N. Y.) 610; s. c. 12 N. Y. Supp. 534; 35 N. Y. St. Rep. 589; Fahr v. Manhattan R. Co., 9 Misc. (N. Y.) 57; s. c. 59 N. Y. St. Rep. 683; 29 N. Y. Supp. 1; 22 Wash. L. Rep. 595;

on the face of the complaint, for want of facts, that the negligence charged was not the proximate cause of the injury, a demurrer should be sustained when interposed.73 Thus, where the action was against a steamboat company and the negligence laid in the complaint was that the plaintiff had been "violently pushed, pulled, and thrown through a hatchway, negligently left open by the employés of the company," it was held that the complaint was bad on demurrer because it did not show that the plaintiff was violently pushed, pulled or thrown through such hatchway by any person for whose conduct the defendant was responsible. It could not be assumed that these violent actions were committed by the defendant or by any of his agents or employés, but the presumption was that they were committed by a stranger to the plaintiff, and if so, there could be no recovery.74 So, a complaint by a railway brakeman, alleging that while the train, owing to insufficient brakes, was descending a long, steep grade, at a dangerous rate of speed, he was thrown from a coal car and injured in jumping from one car to another because the coal thereon was improperly loaded and gave way under him, was held bad in not showing any connection between such speed and the accident or that it would not have occurred if the train had been going slower.75 Causal connection between the negligence and the injury has been held sufficiently averred by an allegation that "plaintiff, in consequence of the aforesaid wrongful acts, neglect, and default of the defendant and without fault on his part," suffered injuries from the negligent

Eckles v. Norfolk &c. R. Co. (Va.), 25 S. E. Rep. 545 (no off. rep.). In an action for the death of a railroad employé, a petition averring that the work in which such employé was engaged was so heavy that the operation of the track-jack was dangerous, unless two jacks were used in raising the track, and that it was negligence not to furnish two jacks, is defective, where it is not expressly averred that such act contributed to the accident which caused the injury: Gulf &c. R. Co. v. Renfro (Tex. Civ. App.), 69 S. W. Rep. 648. A complaint alleging that defendants constructed a wooden bridge over a gutter, that it was defective, and that plaintiff, in driving over it with due care, was injured by its breaking down, does not state a cause of action against defendants, in that it contains no allegation that plaintiff was injured by any negligent act on the part of defendants: Berry

v. Dole, 87 Minn. 471; s. c. 92 N. W. Rep. 334.

73 Pike v. Chicago &c. R. Co., 39 Fed. Rep. 754; Listner v. Indianapolis, 100 Ind. 210. A declaration is demurrable although it contains some loose allegations that plaintiff was injured by the negligence of the employés of defendant railway company, where it clearly appears therefrom that such negligence was not the real cause of the injury, and that the negligence causing the injury was that of a flagman in ordering plaintiff to alight from a moving train in the dark at an unsafe place, and there is no allegation that the flagman had any authority to give such order, or that it was within the scope of his duties: Savannah &c. R. Co. v. Wall, 96 Ga. 328; s. c. 23 S. E. Rep. 197.

Evansville &c. Steam Packet Co. v. Wildman, 63 Ind. 370.

75 Louisville &c. R. Co. v. Hicks, 11 Ind. App. 588; s. c. 37 N. E. Rep.

43.